Grinding Justice

Operation Streamline costs millions, tramples the Constitution, treats migrants like cattle, doesn't work

Surprisingly, two of the 23 defendants before Irwin were heading back to Mexico when the Border Patrol arrested them. Johnson says he's been seeing more and more of such cases. Shuttles departing from Phoenix and heading for the border at San Luis, Arizona, are either stopped by Border Patrol agents before they make their destination or checked for undocumented aliens once they've arrived.

"A good percentage of our clients are arrested heading back into Mexico," Johnson says. "The Border Patrol and Customs have what they call 'southbound operations.'

"You hear people complaining that taxpayer dollars are going to arrest these people and to process them," he continues. "But if we're arresting people who were footsteps away from Mexico, that argument doesn't carry much weight."

Brian Stauffer
A bus for private prisons giant Corrections Corporation of America picks up migrants sentenced to time in custody by a Tuscon magistrate
Stephen Lemons
A bus for private prisons giant Corrections Corporation of America picks up migrants sentenced to time in custody by a Tuscon magistrate


Border Patrol's Yuma sector spokesman acknowledged that the agency conducts southbound ops. He says he can't say how many illegal aliens are apprehended as they are returning to Mexico.

"Well, at one point they entered," says Quillin slyly. "So, no, we don't treat anybody different. When we approach individuals, and they say they're going back to Mexico, we just make sure that they do."

But Johnson ascribes a more insidious Border Patrol motive to its agents busting shuttles headed for Mexico.

"They're boosting [the Border Patrol's apprehension] numbers," says Johnson, "by arresting the people going southbound."

One final oddity of the Yuma court: During Streamline hearings, a Border Patrol agent plays the part of prosecutor instead of an assistant U.S. Attorney, as in Tucson. Quillin confirms that this person is not a Border Patrol lawyer, simply an agent.

The official line is that this is allowed because the agent isn't acting as an advocate, but is simply relaying information about the defendant's criminal or removal history.

Still, professor Erin Murphy of New York University's School of Law finds the issue troubling, as she does many aspects of Operation Streamline.

"These are the kinds of shortcuts that should really raise questions," says Murphy, whose areas of expertise include criminal law and criminal procedure. "I think there are real questions of prosecutorial independence when . . . the police become the prosecutors."

Streamline's detractors, including Murphy, point to a number of other legal shortcuts that raise red flags about the constitutionality of the program.

Most troubling for faultfinders are the hearings themselves, which hasten and compress the process of meeting a lawyer for the first time, having an initial appearance before a judge, pleading guilty and getting sentenced. All this happens in less than a day.

As described, this "streamlined" hearing is performed en masse. Critics charge that such proceedings violate defendants' due-process rights, due process being the underlying concept of fairness that is one of the pillars of our legal system. It's a concept that dates back to the Magna Carta and is enshrined in the Fifth and 14th amendments.

The Fifth Amendment declares that "no person" shall be "deprived of life, liberty or property without due process of law." The 14th Amendment contains the same guarantee, applying it to states.

Although illegal immigrants don't enjoy all the same rights as citizens, certain basic constitutional protections apply to them, too, particularly during criminal proceedings. The U.S. Supreme Court has ruled that the due-process clauses of the Constitution's Fifth and 14th amendments cover "all persons within the United States," regardless of immigration status.

Though there are pending lawsuits involving Streamline, the courts have yet to address the underlying constitutional questions of whether Streamline defendants are denied due process.

However, in December 2009, the Ninth U.S. Circuit Court of Appeals found in U.S. v. Roblero-Solis that Streamline hearings violated Rule 11 of the Federal Rules of Criminal Procedure, which states that judges "must address the defendant personally in open court" and determine whether the defendant's guilty plea and waiver of rights is voluntary.

"We act within a system maintained by rules of procedure," Ninth Circuit Judge John Noonan observed in the court's decision. "We cannot dispense with the rules without setting a precedent subversive of the structure."

The Ninth Circuit did not tackle constitutional issues, leaving it up to magistrates as to how they should proceed. Nevertheless, the Ninth Circuit made clear that it frowned upon magistrates taking pleas en masse.

"To be specific," Noonan wrote, "no judge, however alert, could tell whether every single person in a group of 47 or 50 affirmatively answered their questions."

And yet, these hearings continue. And though Tucson magistrates now take pleas individually, some questions are still asked of 70 people at a time or of smaller groups of seven.

Erwin Chemerinsky, a constitutional scholar and dean of UC Irvine's School of Law, was shocked when the proceedings in Velasco's court were described to him.

"Seventy individuals in 40 minutes is about 30 seconds per," says Chemerinsky. "I haven't seen it—I don't want to offer any conclusions—but I am skeptical that you can, in 30 seconds, give someone a meaningful hearing."

However, during an interview for this article, District of Arizona Chief Judge John Roll defended the way Streamline cases are handled in his state.

"If I thought that due process suffered," he insists, "I certainly would oppose it. But I don't think that is the situation."

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